Section 171.208 of the Texas Heartbeat Act of 2021 allows "[a]ny person, other than an officer or employee of a state or local governmental entity in this state" to "bring a civil action against any person" performing or aiding and abetting an unlawful abortion.

Putting aside the massive controversy surrounding this law (sometimes derisively called the "Texas Bounty Hunter Law"), I got to wondering what kind of civil cause of action is actually created here.

This obviously isn't a breach of contract, since the plaintiff obviously need not have any prior contract with the defendant. It also wouldn't seem to be a tort, since there is no general duty of care not to participate in an abortion. Even assuming, arguendo, that this statute creates a duty of care not to participate in an abortion and owed to almost everyone else in the state, the vast majority of potential plaintiffs are either not going to be harmed by any particular abortion or will experience only a de minimis harm. Without legally cognizable harm done to the plaintiff, no tort action will typically lie even if a duty of care is breached.

Another possibility I considered was that an equitable remedy is being created, but equity is designed around achieving fairness and giving someone a windfall because someone hundreds of miles away that they don't know drove someone they also don't know to an abortion clinic they had not previously heard of does not achieve any sort of equity.

What kind of civil action is created by the Texas Heartbeat Act? Is it an action in breach of contract? Is it a tort action? An equitable remedy? If it is none of these, what kind of action is it and are there other examples of this kind of action elsewhere, either in Texas law or in any other Common Law jurisdiction?

2 Answers 2


As the answer by Dale M correctly states, it is a statutory cause of action. To classify it further, it would be a strict-liability tort, I believe, as there need be no proof of damages, and there is no duty of care. Instead there is a duty not to engage in the prohibited action. In this respect the statute approaches the criminal.

A more familiar but analogous action would be a suit for copyright infringement where statutory damages are sought. The infringer owes no duty of care, and is bound by no contract. But the law imposes a duty not to infringe. The plaintiff need not allege or prove any actual harm, the fact of infringement of a registered work with a valid copyright is all that s/he need prove. The limits on damages are specified directly in the statute, and the court may award any amount that is within those limits, provided the infringement is proved and no active defense is established. The purpose of the award of damages is to deter future violations as much as to compensate the plaintiff.

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    There are also similarities to a qui tam action. Commented Oct 22, 2022 at 4:45

A statutory cause

A cause of action created by a statute is statutorily based, it is not based on any common law or equitable cause of action.

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